Code of Conduct for Mental Health Tribunal work

Code of Conduct for Mental Health Tribunal work

The following Code contains a Statement of Good Practice for those Solicitors conducting Mental Health Tribunal work. It does not have the status of a Practice Rule, but may be referred to for guidance in assessing whether a solicitor's conduct met the standards required of a member of the profession. Solicitors should refer to the guidance on Vulnerable Clients, Capacity Generally and Mandates

Article 1 – Seeking business

(a) A solicitor shall seek or accept only those instructions which emanate from the client properly given and should not accept instructions given as a result of an inducement or subject to any improper constraint or condition

(b) A solicitor should not seek or accept instructions from a person who is in a hospital or another facility for the purpose of receiving care and treatment for mental disorder unless the solicitor has firstly been approached or contacted for that purpose by that person or by a third party who has the express authority of that person to do so

It is competent to accept a referral from an advocacy worker or other third party such as a mental health professional to visit the patient in order to obtain those instructions. Advocacy workers can and often are instructed by the client to assist them in obtaining legal representation or to contact a solicitor on the client’s behalf. Independent advocacy workers have the role under the Mental Health (Care and Treatment) (Scotland) Act 2003 of empowering patients by articulating their views. Where practical the solicitor should take advantage of the advocacy worker’s skill and at all times respect the advocacy worker’s position.

(c) A solicitor should not directly exhibit or distribute any marketing material in a hospital or other facility where persons receive care and treatment for mental disorders which promotes or advertises the services provided by the solicitor and/or their firm. Where a solicitor seeks to have any such material exhibited or distributed in such a place, the material should be provided to those in charge of the running of the hospital or facility to be dealt with by them in terms of the protocols and procedures which exist for this purpose in that hospital or facility.

A solicitor can ask to be included in the Advocacy workers’ list (in the local Scottish Independent Advocates Alliance’s List) of approved mental health solicitors. A solicitor should ensure that they have the requisite specialist knowledge and experience before doing so.

Guidance to Article 1

This Statement of Good Practice is a reminder that a solicitor is an Officer of the Court and as such has obligations and duties to the Court/Tribunal. It is a reminder that a solicitor should always act properly when dealing with Mental Health Tribunal work. Solicitors have a duty to consider any possible communication barriers and ensure that appropriate support for the client to participate fully is available.

It is essential that a solicitor should at all times remain independent of the client, and that the solicitor should be free to give appropriate legal advice. Accordingly no instructions should be accepted in circumstances where it could be alleged that inducements have been offered in exchange for instructions. No instructions should be accepted in circumstances where those instructions are subject, for whatever reason, to restrictions or constraints which compromise the solicitor's freedom to engage as fully and frequently as is necessary with the client. This extends to the solicitor being able to be in a position to arrange such support as may be necessary, in order fully to understand their client’s circumstances and wishes, and to give appropriate independent legal advice.

It follows that a client should not be considered as a "friend" and that a solicitor must always remain "at arm’s length" from the client. This will ensure that both the client and the Tribunal can be confident that the advice tendered by the solicitor is impartial and independent. It is important to remember that often the client sees the solicitor as their only ally in Tribunal proceedings. It is imperative that the solicitor maintains clear and professional boundaries in these circumstances. That can and should be done without giving the impression that the solicitor is unfriendly, or distant, or disapproving. If, for example, a client were to ask whether the solicitor believes them: it can be helpful to explain that what is relevant is both the evidence and the submissions to be made to the Tribunal, because it is for the Tribunal and not the solicitor to decide such matters, and what the solicitor needs is the full cooperation of the client to be able to present the client’s case.

A solicitor should only accept direct instructions from the client and not from a third party. There may be circumstances in which a solicitor is asked by a third party, for example Advocacy Worker, Mental Health Officer, medical or nursing staff, family member or friend of a person who is being treated for mental disorder to visit that person in the place where that person is being treated. In such circumstances, it is the duty of every solicitor to take reasonable steps to check that the third party has obtained authority from the person to contact the solicitor.

Any instructions given as a result of an inducement by a third party on the solicitor's behalf must not be accepted.

Any contract of agency between a solicitor and a client which is based upon any inducement may be illegal and may be subject to action in the Criminal or Civil Courts. Such contracts may also form the basis of a complaint of professional misconduct and may lead to disqualification in terms of Section 31 of the Legal Aid (Scotland) Act 1986.

Article 2 – Conflict of interest

A solicitor should not accept instructions from more than one party in respect of the same matter, or in any other situation of conflict of interest.

Guidance to Article 2

This Statement of Good Practice reflects the awareness which solicitors should always have of the potential conflict of interest that may arise when instructions are accepted from more than one party in the same case. Even though that conflict may not arise – for example, on the basis that a Named Person and a patient may have a common position – the risk of the conflict arising is reasonably foreseeable and therefore the solicitor should decline to accept instructions from more than one party.

Accordingly, when it becomes apparent to the solicitor that they have received instructions from two or more parties in the same case, a solicitor may accept instructions from one of those parties and any others must be told immediately that separate representation must be sought. Depending on what information the solicitor already has from each of the parties who sought to instruct them, it might be necessary for the solicitor to withdraw from acting for both.

Article 3 – Preparation and Conduct of Mental Health Tribunal cases

A solicitor is under a duty to prepare and conduct Mental Health Tribunal cases by carrying out work which is actually and reasonably necessary and having due regard to economy and efficiency.

Guidance to Article 3

It is essential at each stage of the conduct of a Mental Health Tribunal case that all necessary preparation is undertaken timeously. It is essential that a solicitor uses their best endeavours to discover all relevant information and evidence relating to the matters before the Tribunal, any substantive case for opposition thereto and the effectiveness and appropriateness of their client’s care plan. A solicitor should remember that their primary duties are to the client and the Court/ Tribunal and should ensure that the case is properly prepared and that there is no prejudice to the client. Solicitors are reminded that the papers provided to them via CJSM secure email are to be treated with the utmost confidence and should not be shared with any other person other than the client and persons required to see that paperwork, such as for the purposes of preparation of an independent psychiatric report.

Solicitors have a duty to advise their clients that they are entitled to a second opinion from a psychiatrist. Solicitors have a duty to consider the client’s particular needs, circumstances and condition in considering the instruction of a second opinion. The psychiatrist instructed must have relevant experience pertaining to the client’s condition. Solicitors should not accept inducement from firms of independent psychiatrists.

Solicitors should have regard, in relation both to any such independent reports and generally, to ensure “equality of arms” on behalf of the client, including – for example – in relation to the quality and nature of specialist evidence available to the client, having regard in particular to the requirements of Article 6 of the European Convention on Human Rights.

Solicitors have an obligation to consider the client's capacity at every stage of proceedings. If at any point, the client appears to have a change in their capacity and potentially loses the ability to instruct the solicitor, the solicitor should seek appropriate confirmation of the client’s ability to instruct them. The solicitor should ensure that any instructed professional understands that capacity is task-specific; that the rights of access to justice and to representation by a solicitor are fundamental; and that the threshold for ability to instruct is, relatively speaking, low. If appropriate, the solicitor should ascertain whether support could effectively be provided to the client to enable the client to continue to instruct. If it is deemed that the client lacks capacity, the solicitor must withdraw from acting and inform the tribunal service of their decision. This will allow the Tribunal to then take a view on whether or not to appoint a curator ad litem.

Solicitors must be sensitive to the vulnerabilities of clients who have a mental disorder. Solicitors must not mislead or, by their actions or statements, lead such clients to have unreasonable expectations about the prospects or outcome of their case. Client’s expectations should be appropriately managed and solicitors should take due care in light of the client’s individual needs and particular condition.

At the Tribunal hearing, the solicitor should advise the client that the client may leave at any point, take a break or leave to have a discussion with their solicitor or their advocacy worker.

Solicitors should not approach the Tribunal in an aggressive manner. It is important to have the client’s position put forward to the Tribunal and their rights upheld. The Tribunal setting is less formal than the court but solicitors should still act with professionalism and with courtesy.

Solicitors must not exert any pressure or undue influence on such clients to embark on a course of action which has no reasonable prospects of success and is unlikely to be of benefit to the client.

Every solicitor should carry out these duties in all respects in a responsible and professional manner.

Named person

A solicitor, if instructed by a named person, in addition to principles contained in this Guidance notes, should ensure the Named Person is fully appraised as to the independent role of the Named Person.

Power of Attorney

The Guidance referred to in the previous paragraph also applies to solicitors instructed by an attorney and, further, the solicitor should always ensure that their instructions are within the powers conferred by the Power of Attorney, whether by unambiguous general powers or by specific powers.

Last reviewed: 20.05.2022